Submitted - October 28, 2019
Melissa C. R. Chernosky, Port Washington, NY, for appellant.
Stephen David Fink, Forest Hills, NY, for respondent.
Floyd, Brooklyn, NY, attorney for the child.
C. DILLON, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
related proceedings pursuant to Family Court Act article 6,
the mother appeals from an order of the Family Court, Queens
County (Wanda Wardlaw Matthews, Ct. Atty. Ref.), dated
October 10, 2018. The order, after a fact-finding hearing,
denied the mother's petition to enforce the provision of
the parties' judgment of divorce awarding her sole legal
and residential custody of the parties' younger child and
granted the father's petition to modify the judgment of
divorce so as to award him sole legal and residential custody
of the child.
that the order is affirmed, without costs or disbursements.
parties, who divorced in 2008, are the parents of two
children, one of whom is emancipated and not a subject of
this appeal. The parties' younger child, a daughter born
in 2003, is the subject of this appeal. Pursuant to the
judgment of divorce and as relevant to this appeal, the
mother was awarded sole legal and residential custody of the
child, and the father was awarded parental access. In May
2012, the father filed a petition to modify the judgment so
as to award the parties joint custody of the child. In 2014,
the father moved by order to show cause for an immediate
hearing on his petition. According to the father, the mother
was evicted from her apartment, and the child was not
regularly attending school. In an order dated April 22, 2014,
the Family Court awarded the father temporary custody of the
child, which temporary order was continued in subsequent
August 2017, the father moved for leave to amend his petition
for joint custody to a petition for sole legal and
residential custody of the child. In November 2017, the
mother filed a petition to enforce the provision of the
judgment of divorce awarding her sole legal and residential
custody of the child. The Family Court, after a fact-finding
hearing, in effect, granted the father's motion to amend
his petition and thereupon granted his petition for sole
custody, and denied the mother's petition, finding that
it was in the child's best interests for the father to
have sole legal and residential custody. The mother appeals.
party seeking to modify an existing custody and parental
access order must show a 'change in circumstances such
that modification is required to protect the best interests
of the child'" (Matter of Pedicini v Hull,
176 A.D.3d 948, 949, quoting Matter of Davis v
Pignataro, 97 A.D.3d 677, 677). "'The best
interests of the child are determined by an examination of
the totality of the circumstances'" (Matter of
Liriano v Hotaki, 176 A.D.3d 710, 711, quoting
Matter of Peralta v Irrizary, 76 A.D.3d 561, 562).
'"The factors to be considered in determining the
child's best interests include the quality of the home
environment and the parental guidance the custodial parent
provides for the child, the ability of each parent to provide
for the child's emotional and intellectual development,
the financial status and ability of each parent to provide
for the child, the relative fitness of the respective
parents, and the length of time the present custody
arrangement has been in effect'" (Matter of
Bartholomew v Marano, 174 A.D.3d 893, 893-894, quoting
Matter of Al-Dalali v Rivera, 171 A.D.3d 729, 731).
to the contentions of the mother and the attorney for the
child, there is a sound and substantial basis for the Family
Court's determination that it was in the child's best
interests for the father to be awarded sole legal and
residential custody. The court considered and discussed the
panoply of relevant factors in rendering its determination.
The child had missed schooling while previously in the
mother's care, but after custody was temporarily
transferred to the father, school attendance has not been an
issue, the child has been receiving A's, and she has
achieved academic honors. The child also suffered from a
nutritional issue while in the mother's care, and the
father, upon obtaining temporary custody, arranged for the
services of a nutritionist that has yielded some health
benefits to the child. While the child and her
now-emancipated brother were living with the mother, the
father's right of access was often not respected,
resulting in a strained relationship between the father and
the brother by the time of the hearing. By contrast, the
father, upon being awarded temporary custody of the child,
has fostered a relationship between the mother and the child
and has maintained communication with the maternal family.
Finally, the child had not always enjoyed stable living
arrangements while with the mother, so that an award of
custody to the mother now would constitute yet another move,
at a time when benefits to the child from continued
residential stability and parental structure are evident and
demonstrable (see Matter of Conforti v Conforti, 46
A.D.3d 877, 878).
contentions of the mother and the attorney for the child that
the Family Court failed to give sufficient weight to the
wishes of the child, who was 14 and 15 years old at the time
of the continued fact-finding hearing, are without merit.
While the child's wishes are an important factor in any
custody determination, and more so as a child ages and
matures (see Eschbach v Eschbach, 56 N.Y.2d 167,
173; Matter of Newton v McFarlane, 174 A.D.3d 67,
83), the wishes of the child are outweighed in this case by
other circumstances, including her schooling, nutrition,
residential stability, and parental structure, and a
continuation of current circumstances which allows the child
to remain in the lives of both parents (see Matter of
McCrocklin v McCrocklin, 77 A.D.2d 624, 624-625). We